Wednesday, April 18, 2007

Disorganized Labour: Unions and the Chater of Rights and Freedoms - Part Two

Part OnePart TwoConstitutional Paralysis in the Canadian Labour Congress

Although the CLC helped co-found the NDP in 1961, the Congress has never been able to deliver votes to the party in any significant way. Despite the CLC's million dollar campaign contributions, the federal NDP has never been considered a serious contender for office. That said, the party has definitely had a lasting influence in Canadian politics, as evidenced by its ability to push successfully for social reform, especially as the power broker in a minority parliament.

Much of the NDP’s electoral difficulties are owed the NDP's dismal record in Quebec. The sheer size and strength of the province of Quebec unquestionably makes it a key component of the Canadian political system and the NDP is never likely to govern federally without the support of Quebec’s working class. The province's influential trade union movement, which has identified itself with the nationalist cause since the late 1960s, has posed a serious problem for the NDP. The National Question has always been the NDP's Achilles heel in Quebec.[1] How do New Democrats balance a belief in strong central government and national social programs with the sovereignist and devolutionary demands of Quebec's labour movement? The debate over patriation and the Charter of Rights and Freedoms did not offer any new answers.

It could certainly be argued that the advent of a Charter of Rights and Freedoms provided organized labour's elected representatives in Parliament with an ideal opportunity to push for workers’ rights as part of an overall constitutional package, after all it is widely accepted that the NDP was in a position to win certain concessions from the government in exchange for the party's support.[2] Unfortunately for those concerned about entrenching labour rights in the Constitution, union rights were not a priority for the federal NDP. Only NDP MP Svend Robinson took up labour's cause by moving a modest amendment to section 2(d) of the Charter which would have explicitly protected the right to bargain collectively. The amendment was defeated.

It is important to note that constitutionally entrenched collective rights for workers were not of primary importance to any social democratic leader in Canada. After the new Constitution was proclaimed in 1982, Robert Sheppard and Michael Valpy claimed that British Columbia NDP leader Dave Barrett confessed “The constitution on a scale of ten was never more than one and a half to me. The whole debate was a gross waste of time.”[3] The Ontario and Alberta sections of the NDP both made long, detailed presentations to the Special Joint Committee on the Constitution which dealt with a myriad of different issues, but both neglected to mention the absence of specifically categorized labour rights in the Charter. Garth Stevenson, the Alberta NDP's constitutional advisor, explained that the party supported “the principle of entrenching Human Rights in the Constitution”.[4] Stevenson went on to express the view that "Of course, we support very strongly, in addition to the ordinary catalogue of individual human rights, two particular categories of collective rights which, in effect, as Mr. Notley [Alberta NDP Leader] pointed out, are inherent in the whole course of our country's history, the right of our aboriginal peoples and the equal rights of the two official languages right across Canada. We feel very strongly that those rights must be protected as well."[5]

Although the Alberta NDP opposed extending Charter rights to corporations, it was silent on the prospect of entrenching constitutional collective rights for labour. This oversight would have normally prompted organized labour to act, but instead, Canadian unions remained silent.

In essence, the CLC’s neutrality was triangulated between its political loyalties to the federal NDP, its close political connection to powerful provincial sections of the party, and its practical need to retain the allegiance of the FTQ. When Prime Minister Trudeau announced in October 1980 that his government was prepared to move forward with unilateral patriation of the Constitution without provincial consent, Federal NDP leader Ed Broadbent gave his cautious approval, but demanded the inclusion of rights for women, the disabled, and aboriginal peoples as a condition of his party's support.[6] Content with the government’s commitment to consider appropriate amendments, Broadbent enthusiastically endorsed Trudeau’s plan to patriate the constitution unilaterally. Although patriation of the constitution was a longstanding policy of the NDP and its forerunner the CCF, Broadbent’s lack of consultation within the party raised the ire of NDP provincial sections in western Canada, where Trudeau was persona non grata. To complicate matters, Saskatchewan Premier Allan Blakeney, the only NDP Premier in Canada at the time, opposed entrenching a Charter of Rights in the Constitution because he felt that it would shift power away from democratically elected legislators to unaccountable, potentially right-wing, judges.[7] The difference of opinion between Broadbent and Blakeney caused a major rift in the federal caucus and nearly ripped the NDP apart in the early 1980s.[8] Alberta NDP leader Grant Notley sided with Blakeney arguing that provincial agreement was necessary in order for patriation to take place. The two western NDP leaders were no doubt concerned about maintaining provincial control over resource revenues as well. From within Broadbent’s own caucus, a group of four Saskatchewan MPs (Nystrom, de Jong, Anguish, and Hovdebo) publicly broke ranks with their leader and sided with Blakeney instead. Saskatchewan MP, Les Benjamin, who supported Broadbent, described the political tension as follows: “I was as popular as a skunk at a garden party in my own province. Close friends told me they’d never again put my sign on their lawn; they said I was a traitor to Saskatchewan. It was traumatic...”[9]

In Quebec, Parti Québécois (PQ) Premier René Lévesque vigorously opposed the Charter and the patriated Constitution because of his belief that it did not recognize collective rights for Quebec. His government, along with the governments of Manitoba and Newfoundland, challenged the federal government’s authority to proceed with unilateral patriation. Amid the legal deliberations on the constitutionality of unilateral patriation, Lévesque’s position was eventually endorsed by the opposition Quebec Liberals, who joined the PQ in condemning unilateral patriation of the Constitution.[10] The Quebec government’s position was also endorsed by the FTQ, the Confédération des syndicats Nationaux (CSN) and the Centrale de l'enseignement du Québec (CEQ). In fact, the Quebec labour movement’s opposition to the patriation process was so intense that the trade union centrals actually toyed with the idea of appealing to the British Trade Union Congress for support in preventing a new constitution from being adopted in London. The FTQ did eventually join a group known as Solidarité-Québec which gathered 700,000 signatures on a petition calling on Queen Elizabeth II to protect Quebec from unilateral patriation of the Constitution.[11]

Caught in the middle of this entire constitutional mess was the CLC. The Congress did not take any sort of position on the Charter. According to CLC Executive Council minutes dated September 5, 1980, “President McDermott explained that he was of the view that we should not get involved in the 'circus' now completed, especially because the nature of our organization would not lend itself to us having a consensus even within our Council.”[12] After a brief discussion, it was generally agreed that the Congress should “stay out of the issue of the Constitutional Talks as much as possible at this time.”[13] These two statements are important because they shed light on the CLC’s structure, which weakens the cohesiveness of the Congress based on internal cleavages relating to region and language.

Specifically in terms of patriation the CLC was worried by the fact that the NDP was internally divided over the issue and that patriation was threatening to hurt the party electorally. It is also clear that the Congress understood that organized labour in Quebec was very much opposed to Trudeau's package of constitutional reform. The FTQ’s growing strength within the CLC (as evidenced by the special status it was granted in 1974) guaranteed that the Federation’s position could not be ignored. Furthermore, the CLC President was in an awkward political position personally given his unpopularity in Quebec at the time. McDermott’s failure to back CUPW President Jean-Claude Parrot when he encouraged his members to defy a federal back-to-work order during the 1978 postal strike enraged rank-and-file union activists, especially in Quebec. Prior to being confronted with the issue of patriation of the Constitution, McDermott had barely survived a spring CLC convention in 1980 where the FTQ, Quebec locals of CUPE, and the CUPW roundly condemned McDermott for the Parrot incident. These same unions mused openly about finding a replacement for McDermott as CLC President.[14]Since Broadbent, Blakeney and the FTQ were adamant about their respective constitutional positions, McDermott decided to duck the issue entirely with the help of his friend[15], FTQ President Louis Laberge, who was able to successfully pressure CLC executive members to stay away completely from constitutional affairs.

Analysis of CLC minutes confirms that the Congress was forced to make a very important strategic decision over patriation and the Charter of Rights and Freedoms. The CLC had several options, but the most practical intervention would have been to demand that the federal NDP make the collective rights of workers a condition of support for constitutional patriation. This option would have unquestionably created a bitter conflict between the FTQ, the CLC, and the NDP. The FTQ would have been angered by the fact that the CLC had entered into the Charter debate, thus lending credibility to the patriation process. Moreover, the NDP would potentially have been troubled by the CLC's insistence on creating a new condition for the party's support of Trudeau's constitutional package. A public split between the NDP, the CLC and the FTQ was certainly not in the interest of the Canadian labour movement.

The CLC's September 1980 decision to stay out of the constitutional debate did encounter some internal opposition. At the December 1980 Executive Council meeting, Alberta Federation of Labour President Harry Kostiuk appealed “for support in making representation to the federal government on the question of the patriated constitution and the entrenchment of the workers’ rights in that constitution.”[16] Kostiuk was immediately supported by British Columbia Federation of Labour President Jim Kinnaird and Dick Martin, President of the Manitoba Federation of Labour: “It was expressed by Brother Martin that in Western Canada there is tremendous pressure being applied by the affiliates to say something about workers’ rights, and he would rather see the Congress say something as a body, by reversing the decision made at the last meeting.”[17]

McDermott clearly did not want to reopen the issue. “If Brother Laberge were here he would be speaking very strongly in disagreement of voicing our opinion.”[18] The CLC President was supported by his colleague Bob White, “who felt we have no choice at this time to reaffirm our position or we will be opening serious wounds we thought had been solved long ago.”[19] McDermott's view prevailed and the original position of the September 1980 meeting was upheld.

In early 1981, the highest courts in Quebec and Manitoba upheld the position of the federal government. However, Newfoundland’s Court of Appeal ruled that unilateral patriation of the constitution would constitute a violation of constitutional convention. These contradictory rulings prompted the Prime Minister to refer the matter to Supreme Court of Canada.